DIANE L. FRENCH, Employee, v. WAL-MART STORES, INC., and INS. CO. OF THE STATE OF PENNSYLVANIA/AIG, CLAIMS ADMIN. BY CLAIMS MANAGEMENT, INC., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 27, 2003

 

HEADNOTES

 

ATTORNEY FEES - PRACTICE AND PROCEDURE.  Where the compensation judge issued an order determining attorney fees without a hearing even though the employer had requested a hearing, remand is required.

 

Vacated and remanded.

 

Determined by Stofferahn, J., Pederson, J., and Rykken, J.

Compensation Judge: William Johnson

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer appeals from an award of attorney fees to the employee=s attorney without a hearing.  We vacate and remand.

 

BACKGROUND[1]

 

The employee sustained an injury arising out of and in the course of her employment with Wal-Mart Stores, Inc. on January 24, 1998.  On October 31, 2001, the employee filed a claim petition which alleged entitlement to temporary total disability, temporary partial disability, and retraining benefits as the result of the January 24, 1998 injury.  The employer and insurer filed an answer which admitted the injury but otherwise denied the employee=s claim.

 

On March 20, 2002, the employer and insurer filed a petition for a temporary order.  The petition claimed that the employee had sustained a new injury with a new employer.  The petition requested a temporary order be issued pursuant to Minn. Stat. ' 176.191 so that benefits could be paid by the employer and insurer pending determination of the issues.  The temporary order was issued on March 28, 2002.

 

On June 24, 2002 the employee=s attorney filed a statement of attorney=s fees pursuant to Minn. Stat. ' 176.081, subd. 9, on the basis of the benefits paid to the employee as the result of the temporary order.  The employee=s attorney sought fees of $5,505.00.  On June 26, 2002, the employer and insurer filed an objection to the statement of attorney=s fees and requested a formal hearing. 

 

No hearing was held.  On January 14, 2003, an order determining attorney=s fees was issued by a compensation judge which awarded the employee=s attorney the requested fees.  The employer and insurer appeal.

 

DECISION

 

A hearing on attorney fees must be held if an objection to the requested fees has been filed.  Minn. R. 5220.2920, subp. 8.  As in any other factual determination, a hearing on the record is necessary to allow the parties to present evidence on the issues.  Shamp v. Daybreak Foods, slip.  op.  (W.C.C.A. December 12, 2002).

 

From a review of the file, it appears the compensation judge issued the order in this case in error.  The employee has not filed a brief to present a rationale as to why the order should be upheld. 

 

The order determining attorney=s fees is vacated and this matter is remanded to the Office of Administrative Hearings for a hearing on the record, including testimony and submission of evidence.[2]


[1] There is no record.  The recited facts come from the pleadings of the parties filed with the Department of Labor and Industry and with the Office of Administrative Hearings.

[2] There is no reason why this matter needed to be decided by this court.  Errors occur in the workers= compensation system as they do in the rest of life and in such a circumstance, the attorneys should attempt to resolve any resulting confusion with a minimum of formality and litigation.